No. 80-179
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
RITA A. HARMON,
Claimant and Appellant,
DEACONESS HOSPITAL, Employer and
INSURANCE CO. OF NORTH AMERICA,
Defendant and and Respondent.
Appeal from: Workers' Compensation Court
Honorable William Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Sandal1 & Cavan, Billings, Montana
For Respondent:
Anderson, Brown, Gerbase, Cebull & Jones, Billings,
Montana
Submitted on briefs: November 6 , 1980
Decided: 1 4 q p ",
Filed: -
.J~f@i .L 4 ~981
9.
Clerk
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
claimant and appellant, Rita Harmon, appeals from a
judgment of the Workers' Compensation Court denying her
petition for temporary total disability benefits under the
Workers' Compensation Act for injuries allegedly suffered
during her employment with the Deaconess Hospital in Billings,
Montana.
Claimant was an employee of Deaconess Hospital on
August 6, 1978. She was employed as a nurse's aide in the
pediatrics ward and was working the 6:00 a.m. to 3:00 p.m.
shift that day. As a nurse's aide, claimant's duties in-
cluded, among other things, assisting in the transfer of
patients from surgical gurneys to hospital beds. Claimant
alleges that at about 1:00 p.m., while lifting a patient
weighing approximately fifty pounds, she "felt a snap" in
her back and "felt a sharp pain as it snapped."
Claimant went to the nurses at the desk and told them
she had felt her back snap and that it was giving her pain.
A registered nurse at the desk, Nevada Hellmer, recalled
claimaint's complaint of lower back pain but could not
remember whether claimant had stated she hurt her back
lifting a patient. The nurses advised claimant to go to the
emergency room to have the pain checked out, which she did
immediately.
Claimant was admitted to the emergency room at Dea-
coness Hospital at approximately 1:15 p.m. on August 6,
1978. She filled out all necessary papers and forms,
Claimant testified she informed at least one or more persons
that she hurt her back while lifting a patient. Dr. Mark
Larsen examined claimant in the emergency room and took X-
rays. He diagnosed claimant as having an arthritic condi-
t i o n and p r e s c r i b e d p a i n k i l l e r s and bed r e s t from August 6
t o August 8, o r u n t i l t h e p a i n d e c r e a s e d .
C l a i m a n t l e f t t h e emergency room a t 3:00 p.m. and was
g i v e n a r i d e home by a l i c e n s e d p r a c t i c a l n u r s e , Linda
Gillispie. G i l l i s p i e t e s t i f i e d t h a t claimant told her t h a t
s h e had h u r t h e r back on t h e f l o o r w h i l e l i f t i n g a p a t i e n t .
The t r e a t m e n t r e c o r d of t h e emergency room e x a m i n a t i o n
s t a t e s t h e p a t i e n t had p a i n from h e r low back t o h e r coccyx,
t h a t s h e had t h e same problem a y e a r a g o , and t h a t t h e r e i s
no h i s t o r y o f trauma. The r e g i s t e r e d n u r s e who n o t e d "no
h i s t o r y of trauma" t e s t i f i e d t h a t t h e n o t e i n d i c a t e d t h a t
c l a i m a n t g a v e no s t a t e m e n t t h a t any u n u s u a l a c t i v i t y c o u l d
have c a u s e d t h e lower back p a i n .
C l a i m a n t ' s husband t e s t i f i e d t h a t h e c a l l e d t h e house
s u p e r v i s o r a t t h e h o s p i t a l a t a b o u t 10:OO p.m. on t h e n i g h t
o f August 6, 1978, t o i n f o r m h e r t h a t h i s w i f e would m i s s
work and t h a t s h e i n j u r e d h e r back w h i l e l i f t i n g a p a t i e n t .
Nancy B a t e s made a n o t e of h i s c a l l b u t t e s t i f i e d s h e d i d
n o t r e c a l l i f s h e w a s a d v i s e d t h a t c l a i m a n t had been i n j u r e d
i n an i n d u s t r i a l accident. The a b s e n t e e r e c o r d s t a t e s t h e
c l a i m a n t was a b s e n t due t o low back p a i n .
C l a i m a n t r e t u r n e d t o work on o r a b o u t August 1 3 , 1978,
and c o n t i n u e d t o work u n t i l a p p r o x i m a t e l y F e b r u a r y 3, 1979.
During t h i s p e r i o d , c l a i m a n t s u f f e r e d i n c r e a s i n g d i f f i c u l t y
and p a i n w i t h r e s p e c t t o h e r back. I t was n o t u n t i l Febru-
a r y 1979 t h a t c l a i m a n t n e x t saw a d o c t o r , a t which t i m e s h e
l e a r n e d s h e was p r e g n a n t . Claimant's o b s t e t r i c i a n , D r . Lee
R a i t z , s u g g e s t e d t h a t t h e m e d i c a t i o n s h e was t a k i n g f o r h e r
back m i g h t a f f e c t h e r pregnancy and t h a t s h e s h o u l d see D r .
Phillip Griffin.
Claimant testified that Dr. Griffin would not take any
X-rays because of her pregnancy, but that he did review the
X-rays taken by Dr. Larsen in August. Dr. Griffin told
claimant she had a slipped disk and recommended more bed
rest and medication. The doctor's records indicate that the
low back pain was not due to pregnancy.
On February 17, 1979, Dr. Griffin hospitalized claimant
for severe back pain. An orthopedic surgeon, Dr. James
Schwarten, was called in for consultation. Upon reviewing
the X-rays taken August 6, 1978, Dr. Schwarten confirmed Dr.
Griffin's opinion by diagnosing claimant as having a "herni-
ated lumbar disk. " Both doctors concurred in their treat-
ment, recommending bed rest, therapy and the use of a corset.
Dr. Schwarten suggested that surgery might be necessary.
Claimant was released from the hospital on February 22,
1979, and advised not to return to work. On September 22,
1979, claimant's child was born. She testified that since
September 22, 1979, she has continued to suffer problems
with her back which have prevented her from returning to
work prior to the time of trial.
Claimant admits that no written notice of her claim for
compensation was made until February 1979. She maintains,
however, that the employer or a supervisor in charge was
given verbal notice of her injury and had actual knowledge
of her accident and injury within the required sixty days.
The issues raised on appeal are whether respondent-
employer had notice or actual knowledge of the industrial
injury as defined in section 39-71-603, MCA; and, if so,
whether claimant suffered a compensable industrial injury as
defined in section 39-71-119, MCA.
Claimant contends she suffered a compensable injury and
that the actions taken by her shortly thereafter gave her
employer actual notice in accordance with the statute.
Respondent's position is that neither the Deaconess
Hospital nor its managing agent in charge had actual knowl-
edge of the accident allegedly suffered by claimant. Even
though the supervisor knew claimant had low back pain,
respondent argues that this is not equivalent to the knowl-
edge that claimant was injured in an accident.
If the Workers' Compensation Court's findings are based
on conflicting evidence, as they are in this case, this
Court's function on review is confined to determining whe-
ther there is substantial evidence on the whole record
supporting such findings. Hume v. St. Regis Paper Company
(1980), Mont. , 608 P.2d 1063, 37 St.Rep. 378. If
there is substantial evidence to support the findings of the
Workers' Compensation Court, we cannot overturn that deci-
sion. Jensen v. Zook Bros. Const. Co. (1978), 178 Mont. 59,
581 P.2d 1191, 1193, 35 St.Rep. 1066, 1068; Steffes v. 93
Leasing Co., Inc. (U.S.F.&G.) (1978), 177 Mont. 83, 580 P.2d
450, 452, 35 St.Rep. 816, 818.
A review of the record indicates claimant testified
that on August 6, 1978, she advised one or more of the
emergency room personnel that she was hurt on the job.
Claimant's husband testified he told a registered nurse that
his wife was injured while lifting a patient. Claimant's
testimony was corroborated by Linda illi is pie, but the
Workers' Compensation Court dismissed Gillispie's testimony
because she was not a managing agent or supervisor in charge.
Two registered nurses testified they had no recollection if
e i t h e r c l a i m a n t o r h e r husband had a d v i s e d them of a n i n d u s -
t r i a l a c c i d e n t on August 6, 1978.
T h i s C o u r t h a s p r e v i o u s l y h e l d t h a t t h e t e s t i m o n y of a
w i t n e s s t h a t he d o e s n o t remember whether a c e r t a i n e v e n t o r
c o n v e r s a t i o n took p l a c e d o e s n o t c o n t r a d i c t p o s i t i v e t e s t i -
mony t h a t such e v e n t o r c o n v e r s a t i o n d i d t a k e p l a c e . Lasby
v . Burgess ( 1 9 3 0 ) , 88 Mont. 49, 289 P. 1028; Lindbolm v .
Employers' L i a b i l i t y Assurance Corp. ( 1 9 3 0 ) , 88 Mont. 488,
295 P. 1007; B l a s e r v . C l i n t o n I r r i g . D i s t . ( 1 9 3 5 ) , 100
Mont. 459, 53 P.2d 1 1 4 1 ; I n r e Nelson ( 1 9 3 6 ) , 103 Mont. 43,
60 P.2d 365. Thus, w e have h e r e t h e u n c o n t r a d i c t e d p o s i t i v e
t e s t i m o n y of c l a i m a n t and h e r husband t h a t t h e employer o r
i t s a g e n t had a c t u a l knowledge of c l a i m a n t ' s a c c i d e n t and
i n j u r y on August 6, 1978, t h e day i t i s c l a i m e d t o have
happened.
The Workers' Compensation C o u r t a l s o r e l i e d on t h e
a b s e n c e of any n o t a t i o n of a n i n d u s t r i a l a c c i d e n t i n t h e
t r e a t m e n t r e c o r d s of t h e emergency room o r i n c l a i m a n t ' s
absentee records. An emergency room n u r s e t e s t i f i e d t h a t
n o r m a l l y t h e t r e a t i n g p h y s i c i a n would f i l l o u t an I n d u s t r i a l
A c c i d e n t Board s h e e t ; however, a new g r o u p of d o c t o r s had
t a k e n o v e r emergency room s e r v i c e s i n J u l y 1978, and t h e y
w e r e h a v i n g problems w i t h t h e forms. In fact, there was
e s t a b l i s h e d no a u t o m a t i c p r o c e d u r e f o r r e p o r t i n g i n d u s t r i a l
a c c i d e n t s u n t i l a t l e a s t two months a f t e r c l a i m a n t w a s s e e n
i n t h e emergency room. Also, t h e absentee record dated
August 6 , 1978, s t a t e d t h e r e a s o n f o r c l a i m a n t ' s a b s e n c e w a s
low back p a i n . The n u r s e who f i l l e d o u t t h e r e c o r d t e s t i f i e d
t h a t s h e would n o t d i s t i n g u i s h between r e g u l a r p a i n and a n
i n d u s t r i a l a c c i d e n t i n making t h e n o t e .
As stated previously, our function is to determine
whether the Workers' Compensation Court findings are sup-
ported by substantial evidence. Substantial evidence is
such as will convince reasonable men and on which such men
may not reasonably differ as to whether it establishes the
party's case, and, if all reasonable men must conclude that
the evidence does not establish such case, then it is not
substantial evidence. Adami v. Murphy (1945), 118 Mont.
172, 164 P.2d 150; Grand Trunk Railway Co. v. Ives (1892),
144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.
We hold the court's finding of fact that the employer
did not have actual knowledge of claimant's injury within
the statutorily required time is not supported by substan-
tial evidence on the whole record.
While still on shift duty and wearing the uniform of a
nurse's aide, claimant reported to emergency room personnel
that her back hurt. Dr. Larsen authorized X-rays to be
taken. It is at that point that an agent of Deaconess
Hospital had actual knowledge of claimant's alleged indus-
trial accident.
Dr. Larsen was the emergency room physician on duty for
Deaconess Hospital. Section 28-10-103, MCA, provides: ". . .
An agency is actual v+hen the agent is really employed by the
principal. . ." Section 28-10-604, MCA, provides: "As
against a principal, both principal and agent are deemed to
have notice of whatever either has notice of and ought, in
good faith and the exercise of ordinary care and diligence,
to communicate to the other." Thus, Deaconess ~ospitalhad
notice of claimant's alleged industrial accident on the day
it occurred through Dr. Larsen, its managing agent.
The p u r p o s e of t h e n o t i c e r e q u i r e m e n t o r a c t u a l knowl-
edge i n l i e u t h e r e o f i s t o e n a b l e t h e employer t o p r o t e c t
h i m s e l f by prompt i n v e s t i g a t i o n of t h e c l a i m e d a c c i d e n t and
prompt t r e a t m e n t of t h e i n j u r y i n v o l v e d w i t h a view toward
minimizing i t s e f f e c t s by p r o p e r m e d i c a l c a r e . See 2
L a r s o n , Workmen's Compensation Law, 55 78.00 e t s e q . In the
i n s t a n t c a s e , w i t h i n two h o u r s of t h e a l l e g e d a c c i d e n t , t h e
employer had n o t i c e , a d i a g n o s i s and p r e s c r i b e d m e d i c a l
treatment f o r the injury. Thus, t h e p u r p o s e o f t h e s t a t u t e
was f u l f i l l e d , and t h e employer was p r o t e c t e d .
The second i s s u e i s whether t h e f i n d i n g of t h e Workers'
Compensation C o u r t t h a t c l a i m a n t d i d n o t s u f f e r a compen-
s a b l e i n j u r y i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e .
I n S t a m a t i s v. B e c h t e l Power Co. (1979), Mont .
,
- 601 P.2d 403, 406, 36 St.Rep. 1866, 1870, w e s t a t e d :
"The A c t i n p e r t i n e n t p a r t d e f i n e s a n i n j u r y
i n t h i s language:
II I II In jUrytt o r " i n j u r e d " means:
" ' (1) a t a n g i b l e happening of a t r a u m a t i c
n a t u r e from a n unexpected c a u s e o r u n u s u a l
s t r a i n resulting i n either external or inter-
n a l p h y s i c a l harm and s u c h p h y s i c a l c o n d i t i o n
a s a r e s u l t therefrom . .
. ' S e c t i o n 39-71-
1 1 9 ( 1 ) , MCA.
"We have p r e v i o u s l y i n t e r p r e t e d t h i s language
t o mean t h a t a c l a i m a n t can r e c o v e r i f t h e
p h y s i c a l harm s u f f e r e d i s u n u s u a l e i t h e r from
t h e s t a n d p o i n t of c a u s e o r e f f e c t . Love v.
R a l p h ' s Food S t o r e ( 1 9 7 3 ) , 163 Mont. 234,
242, 516 P.2d 598, 602; Robins v. Ogle ( 1 9 7 1 ) ,
157 Mont. 328, 333, 485 P.2d 692, 695; J o n e s
v . B a i r ' s C a f e ( 1 9 6 8 ) , 152 Mont. 1 3 , 1 9 , 445
P.2d 923, 926. However, c l a i m a n t must s t i l l
p r o v e a t a n g i b l e happening of a t r a u m a t i c
nature. Dumont v . Wickens Bros. C o n s t r u c t i o n
Co., s u p r a , 598 P.2d a t 1108; E r h a r t v. G r e a t
Western Sugar Company ( 1 9 7 6 ) , 169 Mont. 375,
380-381,546 P.2d 1055, 1058; H u r l b u t v. V o l l -
s t e d t Kerr Company ( 1 9 7 5 ) , 167 Mont. 303,
306-307, 538 P.2d 344, 346. W have ex- e
p l a i n e d t h e meaning of a t a n g i b l e happening
of a t r a u m a t i c n a t u r e i n t h e s e words:
" ' A t a n g i b l e happening must be a p e r c e p t i b l e
happening. [ C i t a t i o n s omitted.] Some a c t i o n
o r i n c i d e n t , o r c h a i n of a c t i o n s o r i n c i d e n t s ,
must be shown which may be p e r c e i v e d a s a
c o n t r i b u t i n g c a u s e of t h e r e s u l t i n g i n j u r y .
T h i s c o u r t h a s found n e u r o s i s compensable, b u t
a t a n g i b l e , r e a l happening must be t h e c a u s e
of t h e condition. [Citations omitted. 1 ...
I n t h e r e c e n t c a s e of Love where a g r a d u a l
b u i l d u p of back p a i n w a s found compensable,
t h i s C o u r t emphasized two s p e c i f i c i n c i d e n t s
of s t r a i n w e r e p e r c e p t i b l e from t h e r e c o r d . '
E r h a r t , s u p r a , 169 Mont. a t 381, 546 P.2d a t
1058."
I n t h e c o u r t ' s f i n d i n g s t h e r e e x i s t s no e v i d e n c e t h a t
c l a i m a n t d i d n o t s u f f e r a t a n g i b l e happening of a t r a u m a t i c
nature causing t h e physical pain. I n t h e record, there i s
evidence t h a t claimant " f e l t a snap" while l i f t i n g a p a t i e n t
weighing a p p r o x i m a t e l y f i f t y pounds. This i s a tangible,
p e r c e p t i b l e happening.
The X-rays t a k e n i n t h e emergency room were viewed by
three doctors. The f i r s t d o c t o r d i a g n o s e d c l a i m a n t a s
h a v i n g a n a r t h r i t i c c o n d i t i o n w h i l e t h e o t h e r two w e r e of
t h e o p i n i o n t h a t s h e had a s l i p p e d d i s k . W must c o n c l u d e
e
t h e r e i s n o t s u b s t a n t i a l evidence t h a t claimant d i d not
s u f f e r a compensable i n j u r y . The f a c t s i n t h e whole r e c o r d
i n d i c a t e t h e c o n t r a r y t o be t r u e .
The judgment of t h e Workers' Compensation C o u r t i s
v a c a t e d and s e t a s i d e . The c a u s e i s remanded t o t h e Workers'
Compensation C o u r t t o e n t e r judgment t o conform t o t h i s
opinion.
W e concur: